IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140731

Docket: 38380

Registry:
Penticton

Between:

Gabriela Kramer

Client

And

Pearce Taylor
Schneiderat

Solicitor

Before:
Master Young
(as Registrar)

Reasons for Decision

Introduction

[1]            
Mrs. Kramer is friends with Mr. Pearce, who is a lawyer at the
firm of Pearce Taylor Schneiderat. While having dinner at his house one night, Mrs. Kramer
told him that she was injured while exercising at the municipal pool. The Styrofoam
water aerobics dumbbells were disintegrating, and she obtained several slivers
from them in the palms of her hands. He told her to come to his office to
discuss a law suit. He did not give evidence at this Legal Professions Act
review.

[2]            
Mr. Varga was in Mr. Pearce’s office when Mr. Pearce met
with Mrs. Kramer. He heard Mr. Pearce explain to Mrs. Kramer how
he billed for his services. He said that he charged an hourly rate and that
they would bill Mrs. Kramer as work progressed. Mr. Pearce did not confirm
this agreement in writing. He sent three bills to Mrs. Kramer which she
paid and has not asked to be reviewed, so none of those bills are before me.

[3]            
Mrs. Kramer provided me with a document that lists all the accounts
she received from the law firm. They are as follows:

1.              
July 27, 2012 ‑ $678.68 which did include a disbursement of
$79.96 to ALS Environmental

2.              
September 25, 2012 ‑ $1,271.84

3.              
January 20, 2013 ‑ $1,564.86

These bills were paid.

4.       May 14,
2013 ‑ $1,102.65

5.       January
29, 2014 ‑ $752.43

These last two bills have not been paid and are the subject
of this review.

[4]            
Mr. Pearce commenced a Supreme Court action and negotiated with the
defendant. Proof that the damage to Mrs. Kramer’s hands came from the pool
was the most challenging issue in the law suit. When she initially came to see Mr. Pearce,
Mrs. Kramer brought with her a set of tweezers and a red napkin, and in
front of Mr. Pearce and Mr. Varga, she removed slivers from her hand.
These slivers were sent to the ALS lab and analyzed. Mr. Pearce reported
to Mrs. Kramer that the slivers were polyethylene.

[5]            
Mr. Pearce paid the bill to ALS in the amount of $79.96 and
included this amount as a disbursement on his first account, which Mrs. Kramer
paid.

[6]            
By April 2013, Mr. Pearce decided that this law suit was going to
be too expensive for Mrs. Kramer (after billing her over $3,000), so he
transferred the file to his junior associate, Mr. Varga, who had just been
called to the bar.

[7]            
It may have been at the same time that Mrs. Kramer was advised to
move this matter to the Small Claims Court so that she would not face a claim
for costs if she did not win at trial. She understood that she had to reduce
her damages to $25,000 if she wanted to proceed to Small Claims.

[8]            
It was determined by Mr. Pearce and Mr. Varga that Mrs. Kramer
should remove more slivers in front of a witness who could testify and that the
lawyer should obtain samples from the dumbbell at the pool. It was apparently
important that the sliver samples were fresh, so they were obtained around the
same time that the dumbbell sample was provided to the firm.

[9]            
It took several months to obtain the dumbbell from the defendant. Finally,
they did send a sample dumbbell to the law firm. Two samples were taken from
the dumbbell, and a new sample was taken from Mrs. Kramer’s hand by her
hairdresser, who agreed to be a witness at the trial. Mr. Varga paid the
disbursement for the chemical analysis of the slivers on his personal law
corporation credit card in the amount of $257.99 and added this disbursement to
his bill.

[10]        
The bill for the second ALS report was an issue of serious contention at
the hearing before me. Mrs. Kramer actually yelled the word “Iiar” in
court when Mr. Varga was testifying and the court had to control her
conduct.

[11]        
I find that Mrs. Kramer is incorrect. There were two bills for
testing done by ALS. She did pay the bill for $79.96 but she did not pay the
bill for $257.99. Mr. Varga paid that bill on her behalf, and she still
owes him that money and perhaps an apology for her conduct. Mr. Varga was
justifiable upset by her conduct.

[12]        
After two months and two bills from Mr. Varga, Mrs. Kramer
decided to proceed with the Small Claims Court trial on her own. She asked for
the report from ALS and Mr. Varga informed her that he was claiming a lien
against the file until she paid his bill. She has therefore taken out this
appointment to review Mr. Varga’s two bills. Interestingly, Mrs. Kramer
has not asked to review Mr. Pearce’s bills.

[13]        
Pursuant to the Legal Profession Act, S.B.C. 1998, c. 9.
Section 71(4) of that Act, sets out the factors a registrar must consider on
such a review. It provides as follows:

(4) At a review
of a lawyer’s bill, the registrar must consider all of the circumstances,
including

(a) the
complexity, difficulty or novelty of the issues involved,

(b) the skill, specialized
knowledge and responsibility required of the lawyer,

(c) the lawyer’s character and
standing in the profession,

(d) the amount involved,

(e) the time reasonably spent,

(f) if there has been an agreement
that sets a fee rate that is based on an amount per unit of time spent by the
lawyer, whether the rate was reasonable,

(g) the importance of the matter to
the client whose bill is being reviewed, and

(h) the result obtained.

[14]        
With respect to the application of each of those factors to this matter,
I find as follows:

(a) the complexity, difficulty or novelty of the issues involved

[15]        
This is a fairly simple case, but has two complicating factors. The
first is the challenge of proving causation. The second is that the damages are
likely not high. This is a complication because a lot of work was needed to
prove a small claim even though it may not be cost effective to continue. I do not
know if Mr. Pearce had this conversation with Mrs. Kramer before she
retained him. She appears to have figured it out as the case progressed and now
wants Mr. Varga to pay the price.

(b) the skill, specialized knowledge and responsibility required of the
lawyer

[16]        
As a newly called lawyer this would be a difficult case, but Mr. Varga
had the assistance of senior counsel to advise him, so I find that the client
was provided the required amount of skill and knowledge.

(c) the lawyer’s character and standing in the profession

[17]        
I see no foundation for any criticism of Mr. Varga’s character. I
find that he has conducted himself in a cautious, diligent professional manner
throughout. I accepted his evidence in areas of conflict over Mrs. Kraemer’s
evidence. Mr. Varga kept detailed records which supported his evidence,
whereas Mrs. Kraemer was operating from memory, some of which was mistaken.

(d) the amount involved

[18]        
The amount claimed is within the Small Claims limit so under $25,000.

(e) the time reasonably spent

[19]        
I have reviewed the time sheet and the tasks performed by Mr. Varga.
He records his time using an application connected to his cellular telephone. I
find the time entries were accurate. He was diligent about timing them and
recording them, and I have no reason to challenge the accuracy. Mr. Varga’s
time was reasonably spent. I see no duplication of charges or time wasted. Mr. Varga
wrote off certain blocks of time when he considered the time to be inefficient.

(f) if there has been an agreement that sets a fee rate that is based on an
amount per unit of time spent by the lawyer, whether the rate was reasonable

[20]        
A fee rate of $220 an hour is reasonable.

(g) the importance of the matter to the client whose bill is being reviewed

[21]        
The law suit against the City is of great importance to this claimant,
who obtained slivers in her hand from using pool weights at the municipal pool.
Her hands reacted to the substance, and she has attended several medical
appointments to correct the damage. She is still taking slivers out of her
hands. She even said that she could not sleep because she was afraid the slivers
would travel in her blood stream to her heart and kill her, at which point she
broke into tears on the stand.

(h) the result obtained

[22]        
We will never know what the result is. Mrs. Kramer has abandoned
the lawsuit.

Disbursements

[23]        
I find that Mr. Varga did prove that his disbursement to ALS Lab
Testing was for $257.99 and not $79.96 as Mrs. Kraemer had thought. There
was a great deal of discussion about this. I accept Mr. Vargas’ evidence. Two
sets of samples were sent to the lab. Mrs. Kraemer did pay for one set and
did not pay for the second set.

Conclusion

[24]        
In determining the appropriate fees to be paid by a client to a
solicitor for work performed by such solicitor on behalf of the client, a
registrar must consider all of the factors set out in the Legal Profession
Act. No one factor is more important than any of the others.

[25]        
In my opinion, all the work performed was necessary and proper, and I
see no reason to reduce either account. The two accounts are allowed in full at
$1,022.24 and $752.43.

Interest

[26]        
Section 73(3) of the Legal Profession Act provides as follows:

(3) If a registrar gives a
certificate under subsection (2), the registrar must add to the amount
certified an amount of interest calculated

(a) on the amount the registrar has
allowed the lawyer for fees, charges and disbursements, exclusive of the costs
of the review,

(b) from the date the lawyer
delivered the bill to the date on which the certificate is given, and

(c) at the rate agreed to by the parties at the time the
lawyer was retained or, if there was no agreement, at the same rate the
registrar would allow under the Court Order Interest Act
on an order obtained by default.

[27]        
There is no retainer agreement, so interest will be allowed under the Court
Order Interest Act from 30 days after the date the bills were delivered to
the date of this judgment. Mr. Varga will have to prepare those
calculations before I can sign the certificate.

Costs

[28]        
With respect to costs, s. 72 of the Legal Profession Act
provides as follows:

72 (1) Costs of a review of a lawyer’s bill must be
paid by the following:

(a) the lawyer whose bill is
reviewed, if 1/6 or more of the total amount of the bill is subtracted from it;

(b) the person charged, if less
than 1/6 of the total amount of the bill is subtracted from it;

(c) a person who applies for a
review of a bill and then withdraws the application for a review.

(2) Despite subsection (1), the registrar has the
discretion, in special circumstances, to order the payment of costs other than
as provided in that subsection.

Decision

[29]        
I have allowed the accounts in their entirety. As such, absent special
circumstances (and I do not find any here), Mr. Varga is entitled to his
costs of this review.

[30]        
Section 73(2) of the Legal Profession Act provides:

(2) On a review under this Part,
the registrar may

(b) summarily determine the amount of the costs of the
review and add it to or subtract it from the amount shown on the certificate.

[31]        
In order to assist with the final resolution of this matter and to avoid
an additional court appearance to assess costs, I am summarily fixing the
solicitors’ costs of this review at the sum of $750, inclusive of
disbursements. In fixing this amount, I am mindful of the fact that this hearing
occupied portions of two half-days before me. On the continuation day, Mr. Varga
thought that they had settled the case, but when she stood up in court, Mrs. Kramer
decided that she and Mr. Varga had not reached an agreement, and she
wished to give evidence so the hearing was adjourned to a further date. I have
also considered the fact that the solicitors did incur disbursements to file
the appointment, and the certificate will cost $40 to file. This is all
included in the $750.

[32]        
The solicitors may prepare a certificate with an interest calculation
attached and forward it to me for my signature.

“Barbara M. Young”

Master
Barbara M. Young